The Ninth Circuit Changes the Rules for Law Enforcement Searches for Electronic Evidence

The Ninth Circuit has decided a major case on the way law enforcement searches electronic evidence using search warrants or grand jury subpoenas. The case is United States v. Comprehensive Drug Testing, Inc. and it’s a chewy steak dinner for folks who like reading about how our Constitutional rights are going to work in the age of electronic evidence.

It’s also a kick in the crotch to the kind of agents and prosecutors who over-reach when it comes to people’s Fourth Amendment rights. (Though, as I read the case, I think the agent was overreaching and committed the government lawyers to take some unnecessarily aggressive positions.)

There’s so much in this opinion that I’m just going to raise a few of the big parts I find particularly noteworthy. You should really read the whole thing yourself. Clearly, Comprehensive Drug Testing is going to play a huge role in how the Fourth Amendment and electronic data intersect in the years to come. It’s also kind of a fun read.

Basically there are three big take away points – (1) the government cannot use the plain view doctrine to justify searching electronic evidence they don’t have probable cause to search; (2) the government has an affirmative obligation to disclose any actual risks of destruction of electronic evidence in a search warrant application; and (3) once the government takes electronic evidence pursuant to a search warrant, it is limited to searching for evidence that it already has probable cause to search.

A fuller discussion of each of these points (and more!) is after the jump.

No Plain View Inside Your Computer

First, the law in the Ninth Circuit is now that the government must waive the ability to use any plain view argument with respect to any evidence it seizes which is outside the scope of a search warrant and has to be segregated from the evidence that the government was authorized to seize:

If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.

The Ninth Circuit now requires the government to give up a legal argument or it loses the ability to do it’s own first-level review of the evidence it seizes. Amazing!

The Government Has Join the Reality-Based Community

Second, the Ninth Circuit now requires the government to disclose the actual, as well as the theoretical, risks of the destruction of data when it asks for a subpoena for electronic documents.

[W]hile it is perfectly appropriate for the warrant application to acquaint the issuing judicial officer with the theoretical risks of concealment and destruction of evidence, the government must also fairly disclose the actual degree of such risks in the case presented to the judicial officer. . . . [O]mitting such highly relevant information altogether is inconsistent with the government’s duty of candor in presenting a warrant application.

In Comprehensive Drug Testing, the company had told the government that they would agree to hand over the information the government wanted; the government decided it would be better to break down the door and take all the data, then sort the stuff they had probable cause to look at from the stuff they didn’t. In the search warrant affidavit, the agent did not think the Magistrate Judge needed to know about the company’s offer to share the information.

The Ninth Circuit strongly disapproved of this, and not-to-subtly suggests that this approach is unethical. I’m sure the folks at OPR and PRAO have a more refined view on that than I do though.

What will be interesting about this second point, is how this affects search warrant applications in more run of the mill cases. Will the agents need to disclose that the person who’s house they’re going to break into has talked to the agents in the past? That the person has no criminal history? That there are just no actual risks that the person will destroy evidence, beyond the speculative theoretical risks that law enforcement agents are trained to create? I suppose we’ll see as the case law develops in the Ninth Circuit.

The Government Can’t Search Whatever It Wants

Third, after Comprehensive Drug Testing, the government is limited in the kinds of searches it can do on the data it retrieves from a search warrant.

For example, the government has sophisticated hashing tools at its disposal that allow the identification of well-known illegal files (such as child pornography) without actually opening the files themselves. These and similar search tools may not be used without specific authorization in the warrant, and such permission may only be given if there is probable cause to believe that such files can be found on the electronic medium to be seized

All of this is, I think, quite good. The lines of law enforcement authority in the age of electronic data have been blurry for a while. This opinion brings them into focus in a way that’s appropriately protective of people’s rights.

The Sun May Be Setting on Judicial Deference

Finally, this opinion is interesting for the way it treats law enforcement. For years, federal agents and prosecutors have enjoyed significant deference. Those days are still with us, but they appear to be on the decline. I don’t know if it’s because law enforcement has overreached, or because judicial or public sentiment has turned, or both, or something else, but more skepticism of the actions of government is a good thing.

In this case, though, it appears that the government did significantly overreach.

Indeed, the government admitted at the hearing before Judge Mahan that “the idea behind taking [the volume of evidence that it did] was to take it and later on briefly peruse it to see if there was anything above and beyond that which was authorized for seizure in the initial warrant.”

In short, the government admitted that it set out to violate people’s rights.